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Clash of the GPL and Other IP Agreements?

Cliff posted more than 9 years ago | from the grabby-aren't-they dept.

Software 530

Daimaou asks: "A situation I'm involved in at work has raised some questions regarding the GPL vs. IP agreements. When I started working for my employer several years ago I signed an IP agreement that states anything I think while working for them is theirs, as well as anything I've ever thought in the past if it enters their building; dumb, but I needed a job." To make a long story short: Daimaou wrote some code derived from GPLed sources. Now his company wants to take control over what he's written. IP agreements aside, this sounds like a GPL violation since the company's IP can't override IP already established by the original GPLed code. Daimaou also says the company is trying to patent at least some of the code. Is there anything Daimaou, or anyone else for that matter, can do to get the company to cut short their plans and play fair with IP that obviously doesn't belong entirely to them?"About a year and a half ago, I brought in some source code that I had worked on prior to working here; after receiving verbal OKs that the code would remain mine.

My code was derived from code I got from IBM's Developer Works website and also ActiveState's website; all of which was released under the GPL. I made a lot of additions to the software of my own, but the parts from the above sources were integral pieces and without them, my code wouldn't work.

Now, my employer is trying to lay claim to this software and has filed at least one patent on it that I know of. They have also distributed it but refuse to make the source public. They claim that because of my IP agreement, they have full rights to this source code.

I would like to hear what other readers think and perhaps get some suggested courses of action from people who are smarter with regards to law and the GPL than I am."

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Turnabout (-1, Troll)

daveschroeder (516195) | more than 9 years ago | (#11955510)

Is there anything Daimaou, or anyone else for that matter, can do to get the company to cut short their plans and play fair with IP that obviously doesn't belong entirely to them?

Is there anything that content owners, or anyone else for that matter, can do to get illegal downloaders to cut short their plans and play fair with IP that obviously doesn't belong entirely to them?

Surely if copyright is viewed as so abused as to be invalid invalid in the context of justifying illegal music downloads, it must be equally invalid in the context of the GPL?

Or does it not work both ways...?

Specifics aside, and negligible fallacies in the analogy aside, this is really a very simple question.

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Re:Turnabout (1)

ThePiMan2003 (676665) | more than 9 years ago | (#11955687)

Because once again if one group of slashdotters believe that P2P piracy is AOK it means that noone on slashdot can support property rights.

Re:Turnabout (0)

daveschroeder (516195) | more than 9 years ago | (#11955764)

Once again, avoiding the question, and ignoring the fact that many slashdotters who rationalize illegal downloading are also the SAME slashdotters who defend the GPL.

I'm not questioning the people who DO support copyright and property rights. I'm asking the hypocrites.

Re:Turnabout (4, Informative)

Rei (128717) | more than 9 years ago | (#11955695)

First off, IANAL.

The basic issue is that Daimaou doesn't have the *right* to sign over the code that he modified. When he modified code that was released under the GPL, he was bound by their license agreements. If he signed an agreement to turn over all past IP of his (I'm not sure of the legality of such an agreement), he either broke the law in signing the agreement or he did not turn over the IP; he has no right to void a license established by IBM.

The logic being used by his company is almost amusing. If they got an employee who had formerly worked at Microsoft on Windows, would they expect to be able to patent parts of Windows? Of course not - because when the person worked at Microsoft, their legal obligation was to turn over any IP that they develop to IBM. They had no right to the IP that they wrote. Neither does Daimaou have any right to code that he wrote that fell under the obligations of another party's license.

What his company is doing seems to be pretty darn clear cut to me. But, as mentioned, IANAL.

Re:Turnabout (1)

Rei (128717) | more than 9 years ago | (#11955737)

Er, correction: "Of course not - because when the person worked at Microsoft, their legal obligation was to turn over any IP thaat they developed to Microsoft."

Re:Turnabout (1)

Ayaress (662020) | more than 9 years ago | (#11955705)

It's simpler than that, I would think. Even holding the contract as set in stone, it doesn't give them rights over this. The argument can be made that he didn't think this up. He took somebody else's code and worked with it, but somebody else thought of it and created it, not him.

I admit this may not be the most flattering way to look at it from his standpoint, but it would work.

let's try this again... (1)

sum.zero (807087) | more than 9 years ago | (#11955719)

there is a huge difference between for-profit, commercial violations of copyright and personal filesharing.

to simplify the issue as you do:

1 - shows you have zero grasp of the issues you are arguing

2 - or shows that you are deliberately attempting to misdirect in an effort to push your agenda

i won't even get into the fact that filesharing is legal in places like canada.

sum.zero

Re:Turnabout (3, Insightful)

richie2000 (159732) | more than 9 years ago | (#11955768)

Specifics aside, and negligible fallacies in the analogy aside, this is really a very simple question.

I have never seen a copyright infringing downloader re-sell the latest Britney album as his own creation. When you can show me that happening, maybe your simple question can get the answer it deserves.

IP rights are not black or white. Just as with most things there is a large gray zone and there is a huge difference between on the one hand leeching a song that you would probably not otherwise buy and on the other hand re-sell someone else's software as your own.

You can not equate theft with jaywalking or involuntary manslaughter with genocide even though they are all crimes.

Re:Turnabout (0)

Anonymous Coward | more than 9 years ago | (#11955788)

Yeah, some person out there casually grabbing a copy of something to see if it's something they like -- that's exactly the same as someone taking something for the sole purpose of profiting off their work.

Believe me, dude, the only people profiting off the few pieces of illegal music I've downloaded are the artists. If it turns out to be worth keeping, I will replace it with a legal copy. If not, I'll delete it.

The major fallacy in your analogy is not "neglible". If you want to take it to an extreme, it's the difference between manslaughter and first-degree murder.

I'm sure someone else will be happy to tackle the notion of who's getting screwed in which case and whether or not our hearts should bleed for potential lost profits to a huge corporation with billions in revenues.

GPL holders own the code (2, Interesting)

slashnutt (807047) | more than 9 years ago | (#11955527)

Daimaou wrote the code prior to the IP agreement than the code isn't his to release to the company. The GPL license holders own it.

Re:GPL holders own the code (4, Informative)

slashnutt (807047) | more than 9 years ago | (#11955614)

Whoops let me clarify:

Like I said, If Daimaou wrote the code prior to the IP agreement than the code isn't his to release to the company. The GPL license holders own it.

If Daimaou wrote the code after signing the IP agreement than he couldn't release code to GPL as he isn't the owner. The company owns that portion of the code; therefore Daimaou released the code illegally. Daimaou could potentially be held liable for any damages the company could prove due to the IP release. Furthermore, the code he introduced would have to be removed and possibly recoded. However, if the company wants to use any portion of the GPL code then said company is in violation of the original GPL'ed code.

The company can patent the new technology and can also decide to release the entire packaged software to GPL - these are the only two legal scenarios that can exist without rewriting the GPL code.

Re:GPL holders own the code (1)

iplayfast (166447) | more than 9 years ago | (#11955771)

If Daimanou wrot the code prior to the IP agreement He owns the copyright to his changes, the GPL license holders own the copyright to their code. As he wrote it against GPL'd code his changes are also GPL'd unless he specifically removes the GPL'd (original code) from his changes.

Re:GPL holders own the code (2, Insightful)

schon (31600) | more than 9 years ago | (#11955793)

If Daimaou wrote the code prior to the IP agreement than the code isn't his to release to the company. The GPL license holders own it.

Actually this is incorrect. Unless Daimaou signed the copyright over to the original authors, he retained copyright.

If Daimaou wrote the code after signing the IP agreement than he couldn't release code to GPL as he isn't the owner.

I think you mean "under the GPL", you do not release code "to" a license, you release code "under" a license.

And your statement is true, but is just a technicality - *he* may not release the code under the GPL, but his employer can, and in fact *must* release it under the GPL (if they're releasing it at all.)

Daimaou could potentially be held liable for any damages the company could prove due to the IP release.

Perhaps, it depends on his contract.

Re:GPL holders own the code (1)

athakur999 (44340) | more than 9 years ago | (#11955650)

Daimaou holds the license to the changes he made, however, unless he explicitly transferred ownership of his changes back to the original license holder.

Re:GPL holders own the code (1)

slashnutt (807047) | more than 9 years ago | (#11955700)

I read too much into it. You are correct as Daimaou hold the license; therefore, the company now owns it. Daimaou used the GPL tools code but invented a new algorithm without changing the tool "itself". Hmm tough for him.

Re:GPL holders own the code (1)

Impotent_Emperor (681409) | more than 9 years ago | (#11955743)

Can't he claim that he put the code in the public domain? Technically, he didn't, but he could at least claim he did.

I believe once something is in the public domain, it can't be removed from people with grabby fingers.

Or maybe he could get part of the contract voided. That's probably his best hope.

hmm (5, Informative)

Triumph The Insult C (586706) | more than 9 years ago | (#11955528)

anonymously tip off http://www.gpl-violations.org/ [gpl-violations.org] ?

Re:hmm (2, Funny)

ZephyrXero (750822) | more than 9 years ago | (#11955603)

It won't be "anonymous" now that he's got it posted on Slashdot with his username listed...lol. Hope you're looking for a new job already, and from the sound of it...you don't need to work for scum bags like that anyway.

Re:hmm (1)

Breakfast Pants (323698) | more than 9 years ago | (#11955723)

Yes because we all know that employeers all have a list corresponding all employee names to their slashdot IDs. I'm not saying they can't get his name from this (supoena slashdot records for IP logs..), but odds are they won't.

That's not how the law works (5, Insightful)

hedronist (233240) | more than 9 years ago | (#11955530)

This is actually a fairly clear cut situation. If your code is a derivative of GPLed code, then the derivative is under the GPL, regardless of any other agreements. Your company can either distribute the derived code or not. If they distribute it, they *must* obey the GPL.

If it were any other way, contract law would crumble. Imagine a world where some random Contract X (in this case, your IP agreement) can arbitrarily change the terms and conditions of some other random Contract Y (the GPLed code). A logical extension of this absurdity is that I could then write a contract with you that *somehow* changed a contract between two other, unrelated parties. The law doesn't work that way, no matter how much your Work Overlords would wish otherwise.

The company's copyrights (4, Insightful)

tigre (178245) | more than 9 years ago | (#11955589)

Yeah, the company does have copyrights to the modifications Daimaou made, and any of those modifications, if separable in themselves such that no GPL-derivativeness remains, could be licensed however the company desires, but as long as the two are one, it must be licensed by GPL rules.

Re:The company's copyrights (1)

hedronist (233240) | more than 9 years ago | (#11955652)

True. But the important condition you added was 'if separable in themselves such that no GPL-derivativeness remains'. But the original clrealy stated, 'but the parts from the above sources were integral pieces and without them, my code wouldn't work'.

Since the code is an inseperable derivative of GPLed code, there is no wiggle room available.

Re:The company's copyrights (1)

RupW (515653) | more than 9 years ago | (#11955776)

But the original clrealy stated, 'but the parts from the above sources were integral pieces and without them, my code wouldn't work'.

That could mean anything, though - from "my program relys on function foo from library bar", which clearly is separable, down to "I took their loop and added a dozen lines new logic", which maybe isn't.

Re:That's not how the law works (2, Informative)

RupW (515653) | more than 9 years ago | (#11955624)

If your code is a derivative of GPLed code, then the derivative is under the GPL, regardless of any other agreements.

OK, but any work he added isn't. The summary reads as if his code should be protected because it was linked to GPL code? As I read it (IANAL) they *do* have rights to all the code he wrote, whether it came into the building with other GPL code or not, but not the ActiveState/IBM portions of the code.

Let's assume he linked MyNewFile.c with GPLFile.c to make MyApp which he distributed under the GPL. He remains the original author of MyNewFile.c so he's free to relicence it, e.g. he could link it with BSDFile.c and sell the resulting MyCommericalApp without opening the source. The problem is that his IP agreement with his company gives them rights to MyNewFile.c when he brought it into the building - realistically the verbal agreement isn't going to stand up.

So they do have rights to DayJob.c and MyNewFile.c, and can patent them, but not GPLFile.c. If MyApp is already out there in the world as GPL then they likely won't be able to stop it or enforce patents on it since the OP was the legit owner of the code when it was released; however, if MyNewFile.c was *never* previously released then they probably now can stop him distributing it independently because he's no longer free to call it GPL without their permission.

Even if he didn't add any new files, just added some new lines to an existing GPL file, I imagine this still stands: once you've ripped out the original GPLed lines then the company own the rest.

Re:That's not how the law works (2, Insightful)

isometrick (817436) | more than 9 years ago | (#11955761)

That would be the case for linked code under the LGPL right? For GPL, derivative works would include adding any amount of code to the original GPLed codebase.

Thus, the newly written stuff would still be protected no matter what context he wrote them in ... I think. I don't think there's too much case law to say how it would go in court, though.

Clear cut? (0)

Anonymous Coward | more than 9 years ago | (#11955653)

You're missing one option:
- keep the parts that were written in-house
- rewrite the parts that were taken from the net

Then the company would "own" it all.

Re:That's not how the law works (4, Insightful)

MrLint (519792) | more than 9 years ago | (#11955690)

Indeed this is no different than anything else.

Lets say for the sake of argument, someone stole some code from a popular OS platform, say windows NT4. And then made some changes to it. Is the company that person works for going to try and claim they own stolen property?

They cant try to patent or claim to own non-original work.

Re:That's not how the law works (5, Funny)

corporatemutantninja (533295) | more than 9 years ago | (#11955784)

I wrote a contract with my buddy that says full rights to the music on any of his CDs I rip automatically transfer to me. That overrides the label's ownership, right?

Anyone want some free music? I'll just give it all to Creative Commons now.

Re:That's not how the law works (3, Informative)

Rakshasa Taisab (244699) | more than 9 years ago | (#11955791)

The parent is absolutely correct, the GPL license takes precedence. Whatever contract Daimaou made with the company does not trumph the GPL.

But what happens with the code that has been released? He thought he own the copyright but didn't (his company does). Can the company demand distribution of "their" code stop, since its distribution was not sanctioned by them? Or is it forever GPL'ed? Ofcourse this would be clear if the guy blatantly stole the code, but this case seems kinda grey to me.

Anyway, he is screwed and liable, and the company can't nullifiy the GPL for other peoples code.

IBM? (4, Interesting)

mindstormpt (728974) | more than 9 years ago | (#11955533)

If we're talking about IBM sources, try talking to them about it, maybe they'll be interested.

Move (2, Funny)

odyrithm (461343) | more than 9 years ago | (#11955544)

"Is there anything Daimaou, or anyone else for that matter, can do to get the company to cut short their plans and play fair with IP that obviously doesn't belong entirely to them?"

Move to Europe before it's to late!

Original Creator (4, Interesting)

DeathFlame (839265) | more than 9 years ago | (#11955547)

Well it's easy. The original creator of the work is the one who 'owns' it. The GPL is a liscense, so if it is being violated, the owner should be contacted.

Is this guy in trouble then? (1)

CdBee (742846) | more than 9 years ago | (#11955638)

A side question is whether the questioner's ageement with the company put an onus on hium to secure IP rights for any code he contributed from outside sources. If he didn't notify his employers at the time that he was supplying improved GPL code he might himself have a legal contract problem.

Re:Is this guy in trouble then? (1)

digidave (259925) | more than 9 years ago | (#11955781)

I'd say he should have notified the company, but since the company is laying claim to everything this guy thought of while on the job, I guess it was their idea to use GPLed code, too :)

Seriously, if the company said from the beginning that they wanted to distribute the app without source then this guy shouldn't have contributed GPLed code. If he didn't think they were going to distribute the app, he should have asked. Either way, it's the company that is violating the GPL, though they can probably sue him for damages if they are required to pull their product or release the code.

No problem (2, Insightful)

NerdHead (35767) | more than 9 years ago | (#11955549)

I don't think the code itself is patentable. What the code does is probably what the company is interested in. It is very likely that they don't want the code GPL'd and will probably have you or someone else rewrite it.

We Are Not Lawyers (5, Insightful)

Anonymous Coward | more than 9 years ago | (#11955553)

Even if we were, we could not give useful advice without full details.

Talk to a lawyer.

Re:We Are Not Lawyers (1)

RupW (515653) | more than 9 years ago | (#11955685)

Even if we were, we could not give useful advice without full details.

Who said he wanted legal advice? There are plenty of other routes out of this - subterfuge, extortion, blackmail :-)

Sorry but... (2, Insightful)

Anonymous Coward | more than 9 years ago | (#11955561)

IANAL, but the way I see it, if they ended up in a court case, they would lose, as the code does fall under the GPL. However, they may find fault with you because you wrote the code under the GPL, which is incompatible with their IP contract. This could be construed as bringing in 'stolen goods' (not exactly), and they may sue you for losses.

Re:Sorry but... (0)

Anonymous Coward | more than 9 years ago | (#11955731)

No, it's very simple: the GPL does not exist. When you end up in a court, everyone will see: "The moron signed a contract!!!" The GPL will NOT be mentionned, only the fact that "he signed a contract." I'm really sorry for him but he should have been more careful, and he is in the biggest mess ever thanks to this contract.

Well... (2, Interesting)

k4_pacific (736911) | more than 9 years ago | (#11955566)

Well, it sounds like it wasn't yours for them to reappropriate from you in the first place. Bear in mind that IBM has a very huge legal team. Since, as you say, some of the code they are claiming as their own belongs to IBM, it might me in your best interest to get out of there before the Nazgul starts picking your company's flesh apart with pliers.

Get new legal dept (2, Interesting)

liquidpele (663430) | more than 9 years ago | (#11955570)

Sounds to me like their legal department doesn't know what they are talking about, or just trying to bleed money from the company with stupid things so they need to get a second opinion from another IP/Copyright/Patent lawyer before they get sued themselves.

Get resume on the street. (-1, Troll)

Anonymous Coward | more than 9 years ago | (#11955573)

If they are publicly traded, then short them.

If they are betting the company on wacky IP claims
and don't understand how modern software works,
then they will go down hill fast. Don't fret about what's going on, just move on.

They're only hope is to have Microsoft backing them
or that they can collect some money on a legal
settlement.

Anyway, this is not a place for an engineer.
Move on soon.

Righting Wrongs (4, Insightful)

Doc Ruby (173196) | more than 9 years ago | (#11955574)

You can send your company's lawyer a copy of "their" code, the GPL'd code from which you derived "their code", and the GPL. You can ask the lawyer to write you an opinion stating that you are protected from the copyright owner of the GPL'd code you use making any claims against your company. And you can remember, while looking for your next job after they fire you, that you shouldn't both sign away rights, and expect to use them, when working for a bunch of thieving assholes.

Re:Righting Wrongs (2, Insightful)

Taladar (717494) | more than 9 years ago | (#11955770)

Actually IMO the fact that you are able to sign away rights on something you create in your free time in the first place shows a severe flaw in the system.

Re:Righting Wrongs (0)

Anonymous Coward | more than 9 years ago | (#11955797)

Not to defend the company, but I seriously doubt they were aware that he was using GPL'd code as a basis for the project they assigned to him.

People who are smarter with laws (-1, Redundant)

Anonymous Coward | more than 9 years ago | (#11955575)

I have three words for you: get a lawyer

Don't sign that document? (-1, Troll)

Anonymous Coward | more than 9 years ago | (#11955578)

Who the hell would sign such an agreement?

"Hey, we'd like to own your soul and in exchange, we'll give you 40K a year. Sounds like a good deal, eh?"

Stupid Canadians.

Well seeing as they was developed from IBM code (1)

Sycraft-fu (314770) | more than 9 years ago | (#11955582)

I don' tthink it'll be a big problem. Just notify IBM of what is happening. They'll get it sorted out, either through licensing the code under different terms or making them open it up. I mean I suppose IBM might decide just to ignore it, but I don't find that highly likely given their history.

Get a lawyer (4, Informative)

ari_j (90255) | more than 9 years ago | (#11955583)

The single best thing you can do is to find a good lawyer. Although you may personally be in violation of the GPL since it was your actions that brought about the violation (but see respondeat superior for why only your company can be sued for this, and not you personally), you may also have a claim that the oral agreement you entered into superseded your written IP agreement, or at least estopped your employer from violating the oral agreement and, by extension, the GPL.

But hire a lawyer. I am not a lawyer, nor is this legal advice. I just know what I know, and what I know is that a good lawyer will spot at least the things I've mentioned and probably more, and more importantly will know how to apply these ideas to cover your ass and, hopefully, keep your code GPLed.

Good luck, and again: hire a lawyer.

Re:Get a lawyer (2, Interesting)

PhilHibbs (4537) | more than 9 years ago | (#11955644)

Respondeat superior [wikipedia.org]

Re:Get a lawyer & Contact EFF (0)

Anonymous Coward | more than 9 years ago | (#11955779)

If I had mod points you'd get them. I would also add contact IBM and the Electronic Frontier Foundation (EFF) [eff.org]
Their lawyers might even represent your interests and of course that of the GNU Foundation.

this is prettty clear cut (0)

Anonymous Coward | more than 9 years ago | (#11955593)

he doesnt have the IP rights to the code in the first place. he is licensing the code from other people.

also the patent has obvious prior art.

inform them that they do no OWN the integral parts, that you licensed that from someone else.

since you didnt own it, they can not own it.

id also look for a new job, they sound like assholes.

Re:this is prettty clear cut (1)

TheCarp (96830) | more than 9 years ago | (#11955738)

> inform them that they do no OWN the integral parts, that you licensed that from
> someone else.

> since you didnt own it, they can not own it.

Actually there is a subtlety here.... THEY licensed. He obtained permission from anagement to use the code, he was doing the work for hire, the company licensed the code from IBM under the GPL.

Put it this way, some of the code is licensed from third parties (namely IBM) and that it would be, as far as you understand it, a violation of the license terms (no need to say "GPL" or anything) for them to do what they intend to do, and they need to contact IBM to see about relicensing it if they want to do otherwise.

If they still intend to proceede... well I would blow the whistle but, thats his perogative really. If he intends to do that then yes, I would job search.

-Steve

Ownership vs. Licensing (4, Insightful)

crow (16139) | more than 9 years ago | (#11955606)

Yes, the employer owns the new code. However, the employer is prohibited from distributing that code under any license other than the GPL unless the code is independent of other GPL code not owned by said employer.

The GPL has nothing to do with copyright ownership. Hence, projects like the Linux kernel are owned by the many different contributers. This is important to understand, because each contributer needs to be sure to claim copyright on their contribution so that they have standing to complain if the license is violated.

Money (1)

bogaboga (793279) | more than 9 years ago | (#11955611)

I can see lawyers here smelling something like money in this situation. Some on one side will say it's a matter of civil rights and others will say...wait a second....this is the issue. We'll see.

Meanwhile, I guess this poor coder/programmer will be given these words....you guessed them..."you are FIRED"!

Seems pretty simple to me... (1)

cortana (588495) | more than 9 years ago | (#11955612)

The software in question is "owned" by the copyright holders (presumably ActieState and IBM). Therefore, your company's claims of ownership on the code are bogus, and any use it makes of the code must comply with the licensing terms that the code was obtained under (the GPL).

If you didn't care about your job, you would contact the copyright holders and inform them of what's going on--it is up to them to sue your employer, if they find that your employer is in breech of the license.

As for the patent: if it's not been patented already, then it's fair game. Get used to it.

The moral of the story: verbal agreements are meaningless. Get it in writing, or don't bother.

Re:Seems pretty simple to me... (1)

cortana (588495) | more than 9 years ago | (#11955663)

Whoops, I should clarify this: I'm talking about the code you created your derived work from in the first place. The code you wrote yourself, is owned by your employer, and they can do anything they want with it. However they are not free to do anything with the code they don't own, and derivative works thereof (this includes a work comprising the original code + your modifications).

Re:Seems pretty simple to me... (1)

cortana (588495) | more than 9 years ago | (#11955698)

One more thing: we don't know what country you are in, so all this advice may not apply to you anyway. Also I doubt many of Slashdot's readership are IP lawyers. If you want real advice, you must talk to a solicitor.

Re:Seems pretty simple to me... (0)

Anonymous Coward | more than 9 years ago | (#11955739)

So simple, in fact, you had to follow yourself up twice!

Get all concerned parties involved. (4, Insightful)

FreeLinux (555387) | more than 9 years ago | (#11955616)

Notify IBM, Active State, the original copyright holders and the FSF. Let them all know about the obvious GPL violations of their code.

You, fighting this alone, will almost certainly lose to your employer but, the involvement of outsiders could cause your employer to think twice about their pending actions.

Of course, following this advice will almost certainly result in your firing for any of a number of reasons so, you would be best served by also contacting a good lawyer, in advance.

At best (1)

rabbit78 (822735) | more than 9 years ago | (#11955619)

.. they can claim to own the part of the code that you wrote (excluding the GPLed code). Even that is questionable because you have written it before you signed the said contract.

You Jacked Up (1)

forty_two (147348) | more than 9 years ago | (#11955623)

Verbal agreements aside (which _may_ save your ass, talk to a lawyer) it seems to me you knowingly assigned the IP rights to someone else's code to your employer. IANAL, but I'd think any agreement you signed with them would override any supposed verbal agreement in a "he said, she said" situation. You may just find yourself in deep doo-doo. :(

Whatever you do, though, at least consult with a lawyer.

I don't see a problem. (1, Redundant)

Telastyn (206146) | more than 9 years ago | (#11955625)

The GPL doesn't give a rat's about IP agreements, and it doesn't care who the rightsholder is. When you transfer the copyright from your code to them, they become the GPL copyright holder, and are thus bound by that license for the code in question. That means the patents are likely good and the derived code must be made available with the app, though not necissarily free, and not necissarily public.

But I am not a lawyer, this is not legal advice, and I might be wrong.

dirty pool (1)

FudRucker (866063) | more than 9 years ago | (#11955627)

um, who did you say you work for?

i would put a backdoor on every computer they have and start looking for another job, then once you have another job i would give IBM the keys to that back door for one week then after one week i would release the key to the whole world...

revenge is a dish best served cold...

Re:dirty pool (1)

CdBee (742846) | more than 9 years ago | (#11955680)

if it ever is you in that situation, let us know what it's like in jail...

verbal vs. written (4, Funny)

shark72 (702619) | more than 9 years ago | (#11955629)

"after receiving verbal OKs that the code would remain mine"

My comment won't be very helpful to the situation, but here goes:

If I understand it correctly, he signed a contract with an inventions clause when he started work at the company, but after he was hired, he was told verbally that the inventions clause would not apply to a particular project.

If I were in this position, I would put the onus on the person who made the verbal promise. Their response might be one of a few things:

  1. If they state "yes, I did make that promise to you" then I would reply with "Great! Would you mind following me like a baby duck to the office of our head counsel, and repeating what you just said?"
  2. If they claim never to have said that -- in other words, if they're lying -- then I would sneak in to the office late at night, install porn on their computer, and then tip off MIS. No, just kidding. But if I had a supervisor or co-worker who saw fit to lie to my face, I would have bigger issues with my job than the ownership of some code.

Rooked (1, Informative)

samael (12612) | more than 9 years ago | (#11955634)

Your verbal agreement was worth the paper it was written on, unless you have witnesses. You are working for scumbags. Leave now, inform them that they are working with code _already owned by a company that could buy them a million times over_ and look for a job that isn't working work scumbags.

They're simply wrong (0)

Anonymous Coward | more than 9 years ago | (#11955636)

Regardless of the IP agreement with you, that code was licenced to both you and your employer under the GPL. If a customer who they have distributed binaries to requests the source, they must provide it, otherwise they are violating the GPL.

The only person the IP agreement makes a difference to is you. If you had used the code without telling them about the GPL problems, they'd still have to comply, however they would most likely be able to claim damages from you. However, this isn't the case as I read it. You seem to have made the GPL situation clear to them beforehand, and so you haven't put them in this situation, *they* made that decision.

Please name the employer... (2, Informative)

(H)elix1 (231155) | more than 9 years ago | (#11955642)

Regardless of the legal merits, it speaks volumes about the corporate culture.

Draconian NDA's usually surface well into the interviewing process, so nice to not waste anyone's time with even looking at the company from an employment standpoint. Love to know who they are...

He shouldn't have plagerized code... (1)

RayDude (798709) | more than 9 years ago | (#11955645)

He shouldn't have used that code in the first place, it was copyrighted and he plagorized it for his job.

Unless his company was willing to adhere to the GPL (by being informed and agreeing in advance) then the code should not have been used.

Since his company had no knowledge it was copyrighted code, this guy has put himself and his company in a very awkward position. I suggest he come clean and then get another engineer to completely rewrite all the copyrighted code in a clean room environment.

The only other option is to make the code and its modifications available to the community and that simply won't work.

As for the patents. Its pointless to patent a concept that already exists in GPL code. Prior art will crush the patent in court, whether it gets through the patent office or not.

Raydude

The solution is harder than the answer (1)

Shadow Wrought (586631) | more than 9 years ago | (#11955646)

It seems pretty clear that the company is in the wrong and that the code does not belong to them. The solution, however, is less clear cut. I would suggest that you retain an attorney. Someone who has your interest at heart. I think that ultimately this might come down to a fight over the contract that you signed with the company signing over all the work you have, or ever will, create. Having someone in your corner might be a pretty good idea.

I would also start looking around. Companies that force prospective employees to sign overarching IP agreements like that will not take kindly to your stance.

Fire Daimaou (1)

OrangeTide (124937) | more than 9 years ago | (#11955649)

Well the company of course should not violate a license, unless they want to open themselves up to a legal battle with FSF and others.

Basically what happened is that Daimaou pulled the company into something they are unhappy about. They should fire Daimaou if they are that unhappy.

A solution is to continue to push forward to patent the technique. Then perform a fresh implementation of the technique without basing it off GPL sources. This will set them back some time, and I'm sure the company has already considered this option and refused it.

Another solution, one that is less likely to work, is to contact the copyright holder(s) of the GPL package and license it directly under a proprietary license.

But mainly I'd just like to say, shame on Daimaou for using GPL'd code without his employer's consent. This is how companies end up violating gpl, because people put them in an awkward situation that they either don't understand or don't accept.

I missed half the article because there was an Ad (2, Interesting)

OrangeTide (124937) | more than 9 years ago | (#11955745)

Stupid ad in the middle of the article.

Basically I retract my entire post because it turns out Daimaou wrote the code before he was employed there. If the company gave a verbal agreement that won't really stand up well (you should have gotten a written agreement).

The company can still legally patent the things you implemented though. You will just no longer be allowed to distribute the GPL'd code. And your company will have to write some code from scratch to make use of their patent.

In California those "we own everything we see" contracts are non-enforcable, because of the right to work laws in the state. See a lawyer and try to research your own state's laws to see where you stand legally.

The company can't really touch code that you don't hold the copyright to though. So that is of course wrong. But they can still patent the changes and block you from distributing them. (using the GPL against you)

Re:Fire Daimaou (1)

MrLint (519792) | more than 9 years ago | (#11955766)

I say shame on a company trying to grab original work from their employees unethically, particularly if its not related to their contracted work duties.

Here's my advice: (1)

Junior J. Junior III (192702) | more than 9 years ago | (#11955654)

Get in touch with a good lawyer, and start looking for heaps of cash behind your sofa.

Hmm (1)

Marthisdil (606679) | more than 9 years ago | (#11955659)

Then wouldn't the OP be responsible for not disclosing what he was doing to his company so that they could determine responsibility, licensing, etc?

If he did it blindly, then I would think that he would be reponsible for lost productivity, time, etc, that his company will lose in revamping the portions of code that he used without notice.

Contact a lawyer, or contact IBM. (2, Insightful)

schon (31600) | more than 9 years ago | (#11955662)

Seriously though, here's what my brain thinks of this:

IBM(?) owns the copyright to the Developerworks software.
Your employer now owns the copyright to the modifications you made.
If your employer has distributed your code, they must do so under the terms of the GPL.
Your employer may apply for (and even receive) patents on the modifications, but *cannot* restrict anyone from using them under the GPL (as per the terms of the GPL.)

If you know they're disributing the code, you should contact IBM.

This is not a GPL problem (5, Insightful)

Mordac the Preventer (36096) | more than 9 years ago | (#11955665)

So there's a dispute over ownership of the code you wrote. That's not a GPL problem, that's a contractual problem between you and your employer.

If your employer wins the dispute, they get no more right than you have to break the terms of the GPL.

IP aside... (0)

Anonymous Coward | more than 9 years ago | (#11955666)

anyone with a name like Daimaou must be a stupid ape.

Seems pretty clear cut to me (1)

Anonymous Brave Guy (457657) | more than 9 years ago | (#11955667)

The company doesn't have a legal leg to stand on anywhere that I can think of. They can't claim rights to the code that the employee didn't have the right to give them, and are still constrained by the GPL, so if they release something based on the GPL'd code then they must also release the source code in the usual way. They also shouldn't be granted a patent based on the earlier work because it's prior art, but with the USPTO and its ilk running the show, who knows? ;-)

The employee himself is potentially in rather a lot of trouble, and the only way I can see to extricate himself is to remove all of his code that he's written since working for this employer from the GPL'd project. He can't give his employer's code away under the GPL any more than his employer has a claim to the earlier already-GPL'd code.

Even then, I wouldn't be surprised if his employer has a strong case against him for whatever professional negligence counts as in their jurisdiction. He shouldn't have used the GPL'd code in the first place if he could reasonably have known that the company wouldn't want to handle the end product in a GPL-compatible way. If that's the case, then his work for them is effectively wasted, and he'll be lucky if he only gets fired.

IANAL in any jurisdiction, and if you get your legal advice on Slashdot you deserve everything else you get too!

Contact GNU/EFF (1)

MattW (97290) | more than 9 years ago | (#11955673)

I'd advising getting in touch with GNU/EFF. From my perspective, even assuming your employer owns the whole thing lock, stock, and barrel, they are still bound by the GPL; otherwise they're violating the copyright of the owners of the original GPL code you built off of. Your contract may give them YOUR rights in the code you wrote, but even so, their contract with you does not enable them to appropriate someone else's work.

I am not a lawyer, and this is not legal advice, but this seems like a complete no-brainer to me. They can claim they own the moon, too, but that doesn't make it so. They don't have the right to distribute dervied works of GPL code without following the terms of the license, which they are not. The right thing to do is contact EFF/GNU - I'd do this first and see if you can get pro bono legal advice. You may end up contacting the original owners about the GPL violation, but since that could expose you to liability for breach of contract or such, you may want legal advice first.

You can't sign away right you don't own (5, Informative)

Harodotus (680139) | more than 9 years ago | (#11955677)

IANAL, but it seems pretty clear to me that you can only sign contracts that limit your own rights.

When you wrote derivative works from a GPL source, you did not gain ownership of the original code or even full patent rights to the code you wrote. The GPL remains in effect. If they argue that your contract gives them ownership, then that contract is illegal and invalid because the original authors (IBM's Developer Works & ActiveState and probably many others) were not party to the contract.

I cannot sign a valid contract, assigning ownership of assets I do not own. I mean I can sign one, but it has no legal standing. The contract and any patents derived from it, would simply be invalidated in the first court to see it.

My $0.02 (0)

Anonymous Coward | more than 9 years ago | (#11955683)

When you modify GPL code and you have such an employment agreement ...

Then I believe you as a developer are accepting the terms of the GPL license on your companies behalf ...

I believe only the original copy write owner of the code has the right to change "licensing" i.e. from GPL to XXX ...

So if you are the original author then yourcompany is probably able to do what there doing ...

Otherwise ... i dare say it sounds like a violation :-)

Take advantage of it (0)

Anonymous Coward | more than 9 years ago | (#11955686)

Here's some of my GPL'd code

for (i=0;i10;i++)

include it in your source code. When they distribute it, we'll sue them for millions. I'll split it with you.

2 cents (1)

SmokeHalo (783772) | more than 9 years ago | (#11955691)

My code was derived from code I got from IBM's Developer Works website and also ActiveState's website; all of which was released under the GPL. I made a lot of additions to the software of my own, but the parts from the above sources were integral pieces and without them, my code wouldn't work.

If the code you wrote was released under the GPL prior to your being hired by this company, then I would think the GPL license supersedes the IP agreement you signed. However, IANAL.

If they're violating the GPL, that's not very nice of them. I would talk to a lawyer who specializes in IP first, just to find out what the situation is. You'll have to decide for yourself, though, whether blowing the whistle on them is worth the possible consequences (being fired, countersuit of some kind, etc.).

RTFQ (0)

Anonymous Coward | more than 9 years ago | (#11955697)

This guy is sooo screwed.


He signed an agreement and knowingly added code he did not held all rights to, thus


Sure, the company is violating the GPL by distributing the yada yada, but they could sue the guy real bad since he frigging KNOWINGLY ADDED UNACCEPTABLE CODE.

It Seems Obvious (1)

kilgortrout (674919) | more than 9 years ago | (#11955699)

The employer can only obtain those rights that the employee has to give. If the code written by the employee is truly "derived" from GPL'd code it too will be covered by the GPL and no contract between the employer and the employee will or can change that. The key here is whether the derived code is covered by the GPL; If it is the employer is in violation of the GPL and a call to the Free Software Foundation would be in order.

mmm, smells like PHBs. (1)

Schwartzboy (653985) | more than 9 years ago | (#11955703)

Here's a question for you that wasn't clear from the original post: did/does the source code that your employer is trying to patent retain any sort of "this code created by X on Y date and is released under the GPL" comments or notices of any kind? If so, it seems to me like the employer is on pretty darned shaky ground (IANAL) because the original code was GPL'd before you derived it, and probably was long before you ever went to work for these jokers.

Am I correct in assuming that the only assurances you got from your employer regarding the code were verbal? I know that verbal contracts are often said to be binding, but I have yet to see or hear of a verbal assurance that was actually upheld if one of the parties tries to weasel out of it. Call me a cynic, but I'm in the habit of not believing any business dealing that isn't written down somewhere and signed in (someone else's) blood for this very reason.

I'd never want you to disclose the name of this employer so that we might curse them to Heck or sign them up for SCO newsletters or anything like that, but perhaps a plucky Anonymous Coward *cough cough* could hazard a guess or two.

to avoid this.... (1)

chipster (661352) | more than 9 years ago | (#11955711)

I write (GPL'd) software at home, on my dev. boxen, in the middle of the night (time/location is very important - otherwise the company owns the code).

I then put it up on my webserver, go into work the next day, and show my boss (CTO) the code available on my site. He then gives me the go-ahead to use it for a corp. project. Everyone wins.

They own the code you write? Fine (2, Insightful)

poot_rootbeer (188613) | more than 9 years ago | (#11955712)

(IANAL and am not sure why anybody would come to Slashdot seeking legal advice instead of talking to an attorney, but here we go...)

The flip side of your employer taking all the credit for the code you write on their behalf is that they also have to assume all the legal liability for the code you write. It's them that will be in violation of the GPL, not you.

What are the whistleblower statutes like in your region? I can tell that the idea that your employer is violating the terms of the GPL bothers you, but siccing the EFF on them might or might not be a good idea unless you want to lose your job in retribution.

Are you talking to the right people? (1)

Noksagt (69097) | more than 9 years ago | (#11955715)

They have also distributed it but refuse to make the source public. They claim that because of my IP agreement, they have full rights to this source code.
Talk to the legal counsel of the company. Show them the GPLed code you used, and no lawyer would try to lay IP claims over code that WASN'T made in-house.

Furthermore, show them the GPL. Explain that they have two options: (1)Not lay claims on any of your modifications to the GPLed code or (2)Obey the license & release code. If they don't realize that by trying to DISOBEY the license & still release binaries under the proprietary license opens the company up for lawsuits & is costly to shareholders, they don't deserve their job. Write a letter to the CEO to this effect.

In the course of all of this, continue to emphasize that agreements you signed cannot override the licenses written by the original copyright holders. Also tell them how you explained your past work on GPLed projects during your interview so that they won't fire you (to do so would be wrongful termination).

IP Agreements (1, Insightful)

Anonymous Coward | more than 9 years ago | (#11955722)

IANAL, but I've been asked to sign plenty of those assinine IP agreements. I always do one of two things:

1) Tell the HR/PHB that I have to have my lawyer review it because I have some items that are patent-pending. They always say "OK". I then throw the damn thing in the trash... If they ask again, I say my lawyer hasn't gotten back to me yet... They eventually forget and I never signed it...

2) If they actually follow-up, then I modify it to state that "Whatever I develop on my time, with my resources, on my property remains my complete and exclusive property to be licensed, or not, as I see fit. Whatever I develop on the employers time, with the employer's resources, on their property remains their complete and exclusive property, subject to the terms and conditions of any other licenses and/or agreements to which I may be a known or unknown party. Any invention or development of mine for which patent rights may be sought by the company shall be joint patent in which both the company and I shall be listed as Inventors, and I shall share in at least 30% of all gross profits derived from said patent.".

After I modify the agreement, I sign it and return it to them. If I don't hear back to the contrary, then I consider that they've accepted it. And after I receive my first paycheck, I have an even stronger case that the modifications were accepted because 1) The agreements are usually a condition of employment, so if they didn't like it, they could fire me, 2) They have lawyers that know, or should know, what the ramifications of the modifications are, 3) I responded with a counter offer to their offer, and they have a duty to respond with an acceptance or denial...

In this case, I'd get their name, address, and phone # everywhere I could as being GPL-sucking blood leeches, and have everyone just start calling the boss and general counsel to advise them of how shitty the situation is... Maybe they could use a subscription to every single open source magazine out there...

Failing that - how about showing the dimwits that the way you make money with open source is thru SERVICE (eg IBM)

If your works are derived... (2, Insightful)

FooAtWFU (699187) | more than 9 years ago | (#11955728)

If your works are derived from other open-source GPL'ed projects, the most you can do is to effectively provide the company you work for with a license to use your contributions and modifications to that code however they so please. However, if this is a derivative work which they intend to distribute, then it must still be licensed under the GPL unless the original authors and contributors authorize you to use it in a non-GPL manner. All of them.

Assuming that to be the case, advise your company that it is not within your power to release them from these restrictions of the GPL, and instruct them to contact IBM+etc for any permission they seek in that regard.

Copyright has nothing to do with patents (0)

Anonymous Coward | more than 9 years ago | (#11955742)

First, nobody in the World can patent "code". They can only patent the ideas and methods.

Second, even if the company owns the code this guy wrote, they still have to abide by the GPL.

No conflict, except the guy loses his rights, and deservedly so.

Please don't babble nonsense! (0)

Anonymous Coward | more than 9 years ago | (#11955751)

Daimaou wrote some code derived from GPLed sources. Now his company wants to take control over what he's written. IP agreements aside, this sounds like a GPL violation since the company's IP can't override IP already established by the original GPLed code.

All this talk of "overriding IP" - it's just meaningless babble like when your mother talks about "downloading the Internet".

The original code is under the GPL. The improvements are copyrighted by the company, as per his employment agreement. The resulting fork can only be redistributed if the employer agrees to the terms of the GPL. IANAL, YMMV.

Daimaou also says the company is trying to patent at least some of the code.

Code is copyrighted, not patented. Inventions are patented, code is merely an implementation detail.

They need to be careful (1)

XeRXeS-TCN (788834) | more than 9 years ago | (#11955755)

They are going to have to be extremely cautious about the things they are doing, because they're potentially in trouble from more than one source. If IBM get wind of the fact that they are violating IBM license terms (even if it *is* the GPL) then they may well act on it. The same goes for ActiveState; while not as much of a threat as IBM, Sophos I would imagine are still not someone you want to mess around with. Then on top of that, you have advocacy groups like the Free Software Foundation, the EFF, and GPL-Violations, all of whom would be very quick to condemn this action and threaten legal proceedings if the license was not followed. The FSF deal with dozens/hundreds of violations a year, this is nothing new.

At the end of the day, it wasn't your code to give. The patent might be valid if there is no prior art to the portions of code that you have created (although without knowing what the program is or does, that isn't to say that the patent is not unobvious or trivial), but stealing GPL licensed code is not. If I let you borrow my walkman for the day, and your contract said that if you bring your walkman to work, they can keep it, that doesn't mean that they have any right to take mine, nor do you have any right to give it. One way or the other, theft is theft. The only solution (if they refuse to listen to reason) is to inform the original author of the code which has been stolen, and to pass the details on to the FSF. They will be able to put legal pressure on the company, and hopefully the threat of a lawsuit will be enough to change your company's mind.

Not your problem (1)

Badly Configured (231381) | more than 9 years ago | (#11955757)

It is a problem between your employer and GPL. Let them sort it out. You did not deceive them at any point about the origin of the code, so they cannot blame you. If they think it is a good business decision to patent the inventions, to derive a non-GPL product from the code you wrote, or to dispute the GPL license on code that someone else wrote, let them do it.

One may have private opinions about the patent system but, given what the system is like, it is a legitimate and common thing for companies to patent stuff. Developing a proprietary version of GPL software based on the parts of the code to which they have the rigths (copyright or license from the copyright holder) is equally legitimate and not entirely unusual. Disputing the validity of GPL on code that was written by some unknown persons is not a smart a move and the IP lawyers will eventually tell them that. As long as you are open and honest about the history of the code and the date on which the inventions were made, none of this is your problem.

Get rich (0)

Anonymous Coward | more than 9 years ago | (#11955787)

There must be some way to make money from the situation. Seems like he's got a better case than SCO.

Daimaou could be in lots of trouble (0)

Anonymous Coward | more than 9 years ago | (#11955802)

Daimaou,

Go back and READ in its entirety the IP Agreement that you signed when you took this job. It likely says that you agree not to incorporate the IP of another party into your work product without permission, which is exactly what you did.

By using GPL code in your work product you entered your company into an agreement with IBM unbeknownst to the legal department in your company. Nice going.

If your IP Agreement doesn't restrict you from using outside IP, than the problem is that your company is violating the GPL. If it does say this, then the problem is that YOU have violated the terms of your IP agreement with your employer, have exposed your employer to potentially enormous legal risk and you need to get yourself a lawyer as soon as possible.

It could also be time to start working on your resume.
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